Criminal Code Amendment Regulations 2004 (No. 1)

Administered by Attorney-General's Department

Legislation au F2004B00097 Regulations Not in force Legislative Instrument

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Criminal Code Amendment Regulations 2004 (No. 1) 2004 No. 83

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 83

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

Criminal Code Act 1995

CRIMINAL CODE AMENDMENT REGULATIONS 2004 (No. 1)

Section 5 of the Criminal Code Act 1995 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. The Schedule to the Act sets out the Criminal Code (the Code).

Division 102 of the Code sets out the offences in relation to terrorist organisations, which are: directing the activities of a terrorist organisation; being a member of a terrorist organisation; recruiting persons to a terrorist organisation; receiving training from or providing training to a terrorist organisation; or receiving funds from or making available funds, support or resources to a terrorist organisation.

Paragraphs (a) to (e) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code define a 'terrorist organisation' to be:

•       an organisation engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act (paragraph (a));

•       an organisation specified in the regulations (paragraph (b));

•       a Hizballah organisation (paragraph (c));

•       a Hamas organisation (paragraph (d)); or

•       a Lashkar-e-Tayyiba organisation (paragraph (e)).

Part 2 of the Criminal Code Regulations 2002 (the Principal Regulations) provides that the organisations mentioned in Schedule 1 of those Regulations are specified for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code.

The purpose of the proposed Regulations is to insert into Schedule 1 to the Principal Regulations the name of the Palestinian Islamic Jihad (PIJ) and its aliases: 'Islamic Jihad Palestine (IJP)'; 'Islamic Jihad - Palestine Faction', Palestinian Islamic Jihad - Shaqaqi' and 'Islamic Holy War' in order to apply the offence provisions in Division 102 of the Code to persons with links to the Palestinian Islamic Jihad.

Subsection 102.1(2) of the Code provides that before the Governor-General makes regulations specifying an organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Code, the Minister must be satisfied on reasonable grounds that the organisation is engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act.

The Criminal Code Amendment (Terrorist Organisations) Act 2004, which received Royal Assent and commenced on 10 March 2004, substituted subsection 102.1(2) of the Code. Prior to amendment, in addition to the requirement outlined above, that subsection also required that the Minister must be satisfied on reasonable grounds that the Security Council of the United Nations had made a decision relating to terrorism and which identified the organisation as one to which the decision related. The removal of this requirement allows the Australian Government to list terrorist organisations based on Australia's national interest and security needs and the advice of Australian intelligence organisations.

Subsection 102.9 of the Code provides that section 15.4 (extended geographical jurisdiction - category D) applies to an offence against Division 102 of the Code. The effect of applying section 15.4 is that offences in Division 102 of the Code apply to conduct (or the results of such conduct) constituting the alleged offence whether or not the conduct (or the result) occurs in Australia.

Details of the proposed Regulations are set out in the Attachment.

The proposed Regulations would commence on the date of the notification in the Gazette.

The Minute recommended that the Regulations be made in the form proposed.

Authority: Section 5 of the Criminal Code Act 1995.

ATTACHMENT

Details of the proposed Criminal Code Amendment Regulations 2004 (No. 1)

Regulation 1 would provide that the Regulations are the Criminal Code Amendment Regulations 2004 (No. 1).

Regulation 2 would provide that the Regulations commence on the date of the notification in the Gazette.

Regulation 3 would provide that Schedule 1 to the Regulations amends the Criminal Code Regulations 2002.

Item 1 of Schedule 1 would insert the name of the organisation Palestinian Islamic Jihad (PIJ) and its aliases: 'Islamic Jihad Palestine (IJP)'; 'Islamic Jihad - Palestine Faction', Palestinian Islamic Jihad - Shaqaqi' and 'Islamic Holy War' into the table in Schedule 1 of the Criminal Code Regulations 2002. Insertion of PIJ and its aliases into the table would specify that organisation as a terrorist organisation for the purposes of paragraph (b) of the definition of 'terrorist organisation' in subsection 102.1(1) of the Criminal Code Act 1995.

 

Overview

The Criminal Code Amendment Regulations 2004 (No. 1) were introduced to address the need for the Australian Government to list terrorist organisations based on national security interests, rather than being solely reliant on decisions by the United Nations Security Council. Enacted under the authority of Section 5 of the Criminal Code Act 1995 by the Attorney-General, these regulations sought to amend the Criminal Code Regulations 2002 to include the Palestinian Islamic Jihad (PIJ) and its associated aliases as specified terrorist organisations. This legislative change was aimed at ensuring that Australian law could effectively target and penalise individuals associated with PIJ for their involvement in terrorist activities, thereby enhancing the country’s counter-terrorism measures.

Scope and Application

The Criminal Code Amendment Regulations 2004 (No. 1) pertains to the Criminal Code Act 1995, which applies to the Commonwealth of Australia and its territories. The Act and its subsequent regulations specifically target offences related to terrorist organisations, including the activities of directing, membership, recruitment, training, and funding of such organisations. These regulations are intended to extend the definition of 'terrorist organisation' to include the Palestinian Islamic Jihad (PIJ) and its various aliases, thereby applying the relevant offence provisions to individuals linked to this group. The scope of these regulations is national, and they are effective regardless of where the conduct or its consequences occur. The amendment to the Act, facilitated by the Criminal Code Amendment (Terrorist Organisations) Act 2004, allows for the listing of terrorist organisations based on national security considerations, without the previous requirement of a United Nations Security Council decision. The regulations commence on the date of their notification in the Gazette, and they are a subordinate instrument that extends the application of the primary Act.

Key Provisions

The key provisions of the Criminal Code Amendment Regulations 2004 (No. 1) (the Regulations) pertain primarily to the identification and specification of terrorist organisations under the Criminal Code Act 1995 (the Act). Section 5 of the Act empowers the Governor-General to make regulations that prescribe matters required or permitted by the Act, or necessary or convenient to its operation. The Regulations aim to amend the Criminal Code Regulations 2002 (the Principal Regulations) by adding the Palestinian Islamic Jihad (PIJ) and its aliases to Schedule 1, which lists organisations specified as terrorist entities under the Act. These Regulations impose obligations on the Minister to be satisfied on reasonable grounds that an organisation is involved in terrorist activities before listing it as a terrorist organisation. Specifically, subsection 102.1(2) of the Code mandates that the Minister must be convinced that the organisation is engaged in, preparing, planning, assisting in, or fostering a terrorist act. The Regulations also reflect a legislative change made by the Criminal Code Amendment (Terrorist Organisations) Act 2004, which removed the requirement that the United Nations Security Council must identify the organisation as a terrorist entity. This allows the Australian Government to list organisations based on national security and intelligence advice. The Regulations also specify that offences related to terrorist organisations under Division 102 of the Code apply to conduct occurring outside Australia, as section 15.4 (extended geographical jurisdiction - category D) extends the geographical jurisdiction of these offences. This means that Australian law can prosecute individuals for terrorist activities conducted abroad if they are linked to specified terrorist organisations. The Regulations outline specific offences and penalties for breaches of the provisions concerning terrorist organisations. Breaching the provisions under Division 102 of the Code can result in severe criminal penalties. For instance, directing the activities of a terrorist organisation carries a maximum penalty of imprisonment for 25 years. Being a member of a terrorist organisation carries a maximum penalty of imprisonment for 10 years, while recruiting for a terrorist organisation, receiving training from, or providing training to a terrorist organisation, or receiving funds from or making available funds, support, or resources to a terrorist organisation, each carry a maximum penalty of imprisonment for 15 years. The precise penalties are detailed within the relevant sections of the Code.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.